Clark #697332 v. Stoddard
ORDER ADOPTING REPORT AND RECOMMENDATION 36 : Petitioner's petition and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:14-CV-80
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
On September 1, 2016, Magistrate Judge Ellen S. Carmody issued a thirty-four page Report
and Recommendation (R & R) recommending that the Court deny Petitioner’s petition for writ of
habeas corpus. (ECF No. 36.) On October 3, 2016, Petitioner filed objections to the R & R. (ECF
No. 40.) This Court is required to make a de novo review upon the record of those portions of the
R & R to which specific objections have been made, and may accept, reject, or modify any or all of
the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
After conducting a de novo review of the R & R, Petitioner’s Objection, and pertinent portions of
the record, the Court concludes that the R & R should be adopted.
Objections to a report and recommendation must be specific. Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). “The filing of vague, general, or conclusory objections does not meet the
requirement of specific objections and is tantamount to a complete failure to object.” Drew v.
Tessmer, 36 F. App’x 561 (6th Cir. 2002). Petitioner’s objection fails to meet this standard because
it simply restates arguments Petitioner made in his original petition and does not directly address
any of the R & R’s conclusions. See Miller, 50 F.3d at 380 (6th Cir. 1995) (“[A] general objection
to a magistrate’s report, which fails to specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must be clear enough to enable the district
court to discern those issues that are dispositive and contentious.”). In fact, Petitioner does not even
reference the R & R outside of an introductory paragraph where he acknowledges its receipt.
Nonetheless, this Court has reviewed Petitioner’s objections to the extent they could be
discerned from Petitioner’s appeal and concludes as follows:
The Magistrate Judge was correct in her conclusions that
The confrontation clause was not implicated in Ms. Nehring’s
absence from the trial;
The Petitioner failed to show that the prosecutor
tainted the jury,
presented false testimony, or
referring to Petitioner as a “predator” was improper.
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment
of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473,
120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined
Petitioner’s claims under the Slack standard.
Under Slack, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims debatable
or wrong.” 529 U.S. at 484, 120 S. Ct. at 1604. For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court's dismissal of Petitioner’s claim was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability.
IT IS HEREBY ORDERED that Petitioner’s Objection (ECF No. 40) is OVERRULED.
IT IS FURTHER ORDERED that the Magistrate Judge’s Report and Recommendation
issued September 1, 2016 (ECF No. 36) is APPROVED AND ADOPTED as the Opinion of this
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that Petitioner’s certificate of appealability is DENIED.
A separate judgment will enter.
Dated: January 30, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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